Journalists continue to face gag orders, other difficulties in covering crime, politics

From the Spring 2002 issue of The News Media & The Law, page 16.

Gag orders and interview bans in Georgia and Alabama stifled efforts to cover the discovery of unburied bodies near a crematorium and the final moments of a woman facing the electric chair. A reporter in Florida suddenly found himself barred from the state House floor after an article critical of a House speaker aide. And a newspaper publisher and a book author discover the difficulties of circulating their work when public officials try to step in and affect the sale.

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Judge modifies gag order in Georgia crematorium case

A Georgia judge modified a gag order in March in order to let the public become more informed about public health, safety and environmental concerns related to a Georgia crematorium where about 300 corpses were discovered.

Superior Court of Walker County Judge William Ralph Hill said he imposed the gag order to protect the fair trial rights of Ray Brent Marsh, who is accused of improperly disposing nearly 300 corpses near his crematorium. The initial gag order following the discovery of the bodies in February prohibited nearly every person involved in the case, including witnesses, from talking to the media.

The modified gag order only prohibits the defense, prosecution, court staff, the Walker County Sheriff’s Department, Georgia Bureau of Investigation and coroner from speaking to the press. The order also bars the prohibited parties from disclosing the defendant’s prior criminal record and character and the identities, testimonies or credibility of prospective witnesses.

Georgia State Rep. Brian Joyce of Lookout Mountain wrote a letter to Hill, opposing the initial gag order: “It would be detrimental to the community to foster an atmosphere of rumor and gossip, which surely a gag order will do. Now is the time for complete openness and full disclosure, which will enable the suffering families to start to heal. I truly believe that less information in this situation is dangerous to our community.”

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Ban on book leaves author as disgruntled as hockey fans

An author appealed a federal magistrate’s Jan. 14 ruling that upheld a peddler’s ordinance and distinguished books from newspapers, preventing him from selling his book about the owner of the Chicago Blackhawks outside the arena where the team plays.

Mark Weinberg, author of Career Misconduct: The Story of Bill Wirtz’s Greed, Corruption and the Betrayal of the Blackhawks Fans, a book critical of the Blackhawks’ owner, was arrested in February 2001 for violating a peddlers’ ordinance by selling his book in front of United Center. Following his arrest, Weinberg filed a civil suit, lost and filed an appeal on April 1.

Weinberg said the ordinance, which prohibits the sale of all merchandise except newspapers on public walkways in certain areas of Chicago, including within 1,000 feet of United Center, violates his First Amendment rights. He said books are not “merchandise” under the Municipal Code and that restrictions on books conflict with the First Amendment’s public forum doctrine.

He said books should not be distinguished from newspapers and must be protected.

But Federal Magistrate Arlander Keys said it is more time consuming to purchase books than newspapers, and the sale of books is more likely to cause congestion and hold up traffic.

Weinberg said selling his books in front of United Center did not cause congestion, and the ban on his sales is based on the controversial content of the work. He also said his biggest market is in front of United Center, because of all the “disgruntled Blackhawk fans.”

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Florida speaker allows reporter to return to House

The speaker of the Florida House gave a Palm Beach Post reporter access to the Legislature’s special sessions starting April 2, after banning the reporter from the House floor in March for allegedly engaging in disruptive behavior.

Post reporter Shirish Date did not attend a single regular session on the floor after House Speaker Tom Feeney banned him from meetings. Feeney claimed that Date pushed two of his aides following a press conference, “offending” and “frightening” members of his staff.

But Edward Sears, the Post’s editor, said Feeney banished Date from the House floor because the reporter wrote a story critical of one of his aides, not because of Date’s attempt to speak with the aide.

“The speaker reacted to a really very unflattering story,” Sears said. “We’re dealing with content, not contact here.”

He also said there was nothing unusually aggressive about Date’s pursuit of the aide, and other measures could have been taken to correct Date’s behavior if necessary.

“If you don’t want to speak to a reporter on the House floor, so be it,” Sears said. “However, denying access of one reporter to the entire House membership is improper,” Sears said in a letter to Feeney, asking him to lift the ban on Date.

Sears said he is pleased Date is reporting from the floor again, though.

He said: “The nonsense is over.”

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Court rules against newspaper in mass purchasing case

The publisher of a Maryland weekly lost a federal lawsuit on Feb. 21 in which he claimed a sheriff, several deputies and a former candidate for the state attorney’s office violated his constitutional rights when they attempted to purchase nearly every copy of an issue that contained unfavorable stories about them.

U.S. District Judge William M. Nickerson struck down three of the six counts brought by Kenneth Rossignol, editor-in-chief and publisher of St. Mary’s Today. He dismissed the remaining counts, saying they were outside the scope of the court’s jurisdiction.

St. Mary’s County Sheriff Richard Voorhaar, one of the defendants in the case, said he is “very pleased” with the court’s decision, adding that he will “fight this thing to the Supreme Court” if necessary.

The suit revolved around the mass purchasing of an issue of Rossignol’s weekly paper due to hit newsstands on Nov. 3, 1998, the day Voorhaar was up for reelection and Richard Fritz was on the ballot for the state attorney’s office. Six deputies and two civilians, with the full knowledge and support of Voorhaar and Fritz, bought up 1,379 copies of St. Mary’s Today with the headline “Fritz Guilty of Rape” in an effort to limit the paper’s circulation for that week.

The facts of the case were not in dispute except for the issue of whether the deputies were acting as law enforcement officials when they made the purchases.

Ashley Kissinger, Rossignol’s attorney, said Nickerson found that the deputies “didn’t act under the color of law,” which is a requirement for liability under the Federal Civil Rights Act. The officers were not in uniform and did not identify themselves as policemen.

Kissinger said her client is considering an appeal to the U.S. Court of Appeals in Richmond, Va. (4th Cir.).

Voorhaar, who was first elected sheriff in 1994, said that he has “a high respect for the media that makes an effort to let people know what’s going on in a fair manner,” but that Rossignol was “circulating poison.”

“You got a guy down here with a tabloid newspaper who, to put it mildly, disregards the truth,” Voorhaar said.

Kissinger disagrees, saying that “one of the most important things in any election is to get information to the public,” even if you don’t agree with it. (Rossignol vs. Voorhaar)

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Alabama TV station loses bid to overcome death-row interview ban

A judge denied a Montgomery, Ala., television station’s request to interview a death-row inmate who might become the first woman to die in Alabama’s electric chair.

Montgomery County Circuit Judge Charles Price on April 24 declined to remove a ban on media contact with such inmates.

WSFA/Channel 12 filed suit in Montgomery County Court, asking Price to allow one of its reporters to speak to Lynda Lyon Block, a woman scheduled to die on May 10 for the murder of a police officer in 1993. The station argued that the ban, ordered by Prison Commissioner Mike Haley, violates the station’s First Amendment rights.

Block and her common-law husband, George Sibley, were convicted on capital murder charges in the shooting death of Roger Motley, a police officer in Opelika, in a Wal-Mart parking lot. Sibley also sits on death row but hasn’t had a date scheduled for his execution.

Sibley and Block say they openly reject government sanctions, claiming that police have no legal power. In court, they said they were merely acting in self-defense after Motley grabbed his gun first.

Haley had issued a memo saying he didn’t wish “to publicize this heinous crime and in so doing bring any recognition to Ms. Block.”

Montgomery County Circuit Judge Charles Price heard arguments in the case on April 19 and agreed with prison officials that an interview with Block would cause security problems.

“There are a legion of cases that hold, as this court does, that Commissioner Haley’s decision to deny the stated interview is not a denial of plaintiff’s right of freedom of speech,” Price wrote in his decision. “This court finds that the denial is based on security and control reasons and is not content-related.” (Cosmo Broadcasting v. Haley)

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Pentagon terminates propaganda office before it begins work

Defense Secretary Donald Rumsfeld said on Feb. 26 that the Pentagon was ending the brief existence of the Office of Strategic Influence because of reports that the agency might deliberately feed foreign media inaccurate information.

The New York Times, which first broke the story about the office’s existence, said Rumsfeld rejected allegations that the Pentagon would be engaged in propaganda operations aimed at the international press. The paper also reported that Rumsfeld closed the office because news reports had ruined the office’s reputation, making it too difficult for it to properly function.

“What it was to do was an open question, even today as it ends its very short, prominent life,” Rumsfeld said.

Rumors that the Pentagon was considering the use of “outside contractors, including public relations firms” in order to ensure that its role remained in the shadows led to “a firestorm of protests” from the industry, according to a report published on the PR Newswire.

Kathy Cripps, president of the Council of Public Relations Firms, said in a statement that the idea “that public relations companies be retained to mislead the media by serving as the Pentagon’s surreptitious messengers of misinformation was patently offensive.”

She added: “It is reassuring that common sense has prevailed and that the credibility and reputation of the United States government are not being put at risk by a plan that would almost surely backfire.”

The Office of Strategic Influence was established shortly after the Sept. 11 terrorist attacks to help spread the United States’ position in regards to the war on terrorism in other countries, especially those in the Middle East.

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Judge refuses to release confiscated film to photojournalist

A Manhattan trial judge denied a free-lance photojournalist’s request for the return of film that was seized when the photographer was arrested during the chaotic aftermath of the Sept. 11 attack on the World Trade Center.

Ruling that photojournalist Stephen Ferry, “as a member of the press, has no greater rights to discovery than any other criminal defendant,” New York Supreme Court Judge Micki A. Scherer refused on Feb. 13 to order prosecutors to release 28 rolls of film taken from Ferry.

Ferry argued that the prosecution’s refusal to return the film was an unconstitutional prior restraint. Scherer ruled that because the photographs were not the subject of the criminal charges against Ferry and were seized as arrest evidence, “the First Amendment has not been implicated.”

Ferry was on assignment for Time magazine when he was arrested Sept. 11 at ground zero and charged with several misdemeanors, including criminal impersonation for wearing a hard hat, coveralls, work boots and carrying a tool box, all belonging to the New York City Fire Department.

Ferry said he put on the gear to protect himself from fire and smoke. He said a civilian rescue worker gave him the toolbox, which was empty, and he used it to protect his cameras.

On Sept. 13, he was arrested while leaving ground zero and charged with criminal possession of a forged instrument, a felony, after he showed an altered New York driver’s license to police as identification.

Police seized his cameras and film. Ferry said the cameras have been returned to him.

The judge’s order says Ferry will continue to have access to the photographs in the district attorney’s office to prepare his defense. (New York v. Ferry)

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Journalists contest Chicago fingerprinting regulations

When the Chicago Police Department unearthed a long-standing policy requiring journalists to be fingerprinted and photographed in exchange for media credentials, local journalists responded.

They sent a letter to Mayor Richard Daley, requesting that he review the code which apparently had been on the books for years but never enforced. The credentials allow reporters and photographers to cross police lines.

David Bayless, the director of news affairs for the Chicago Police Department, said that the threats the city has received since Sept. 11 forced the department to scrutinize the way it does everything, including issuing press credentials.

“We wanted to tighten up and add some real integrity to our media credential process,” Bayless said.

But Christine Tatum, president of the Chicago Headline Club and a technology reporter for the Chicago Tribune, said the policy invades the privacy of journalists. She said the police department also could run background checks on reporters and possibly use that information against them.

“You don’t need a fingerprint to prove” that a person is a journalist, she said. “That we represent a news department should be all the information the police department needs.”

In the Chicago Headline Club’s letter to Daley, Tatum wrote that the ordinance was clearly dated, mentioning news reels but not television, cable or online journalism. She wrote that the ordinance makes no provision for part-time or free-lance journalists and could affect journalists’ abilities to be independent and critical of government.

The police typically issue 3,000 media credentials a year, but Bayless said the numbers might go down slightly if journalists choose to not follow the rules.

“Reporters are granted access where the general public isn’t,” Bayless said. “We are attesting to their credit, confidence and authority by issuing credentials.”

“We question their ability to decide who is and isn’t a journalist,” Tatum said. “We question their right to do that.”

Bayless said the police aren’t deciding who qualifies as a journalist. “We are just making sure that when we issue a credential we are doing it with the confidence that a person is who they say they are,” he said. — KG, MD, KC, PT